the States of Ohio, Indiana, Illinois, Alabama, Missouri, Mississippi, Louisiana, Arkansas, and Michigan were to be paid ten per cent of the net proceeds of the sales of public lands therein, without in any man. ner diminishing the sum theretofore granted to any of said States. Section 2 of said act provided that, after deducting said amount and all expenses connected with the survey, sale, etc., of said lands, sold after the 21st day of December, 1841, the net proceeds were to be divided among the twenty-six States of the Union, the District of Columbia, and the Territories of Wisconsin, Iowa and Florida, according to their respective population, as shown by the census of 1840. By the 8th section of said act each of the States named in the first section was granted 500,000 acres of public lands, and the same amount for each new State thereafter admitted into the Union. Section 9 required the proceeds of the lands granted by section 8 to be faithfully applied to objects of internal improvements within the respective States, namely: "Roads, railways, bridges, canals, and improvement of water-courses, and draining of swamps."

While it may be true that these acts do not directly bear on the material questions involved, yet there can be no question but what they may properly be considered as aids in arriving at the purpose of Congress in passing the Louisiana act of 1849.

In the appeal great stress is laid upon the opinion of Assistaut Attorney General McCammon, in State of Ohio (3 L. D., 571), and it is claimed by the State that it was upon the authority of said opinion that the first indemnity ever allowed the State of Louisiana was on December 28, 1885. Said opinion refers exclusively to the Arkansas act, the acts of 1855 and 1857; it makes no reference to the Louisiana act, and can not be accepted as an authority in determining the matter herein. involved.

The Louisiana act was a special act in that it only applied to the State of Louisiana. It granted to said State all the swamp lands therein, except lands bordering on streams, rivers, and bayous, which it is clear, in view of the debates in Congress, and the Statutes of Louisiana, hereinbefore referred to, were not understood to be or regarded as swamp lands. The exception seems to have been made for the very purpose of protecting the United States from claims thereafter made by the State for the lands embraced in its terms. Said exception refers to lands surveyed under the act of 1811, which gave to the State five per cent of the proceeds of their sale for the very purpose of reclaiming them by draining and levees. This construction accords with sound reason, and under it every part of the act is harmonized. Said act was special and local, in that it only applied to the State of Louisiana. The United States having granted, in contemplation of law, all the swamp lands in Louisiana, there was no swamp land in that State when the Arkansas act was passed, and in the very nature of things the Arkansas act did not apply to any lands in the State of Louisiana. The Arkansas act

was a general act. In construing said acts, the maxim of generalia specialibus non derogant applies. Endlich on the Interpretation of Statutes, section 223, states it as follows:

It is but a particular application of the general presumption against an intention to alter the law beyond the immediate scope of the statute, to say that a general act is to be construed as not repealing a particular one, that is, one directed toward a special object or special class of objects. . . . . It is usually presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special act. .... Having already given its attention to the particular subject, and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment, unless that intention is manifested in explicit language or there be something which shows that the attention of the Legislature had been turned to the special act, and that the general one was intended to embrace the special cases within the previous one; or something in the nature of the general one making it unlikely that an exception was intended as regards the special act. The general statute is read as silently excluding from its operation the cases which have been provided for by the special

one.

Applying this rule to the 4th section of the Arkansas act, it is perfectly clear that Congress did not intend that said section should apply to the State of Louisiana. The whole subject of swamp lands in that State had been disposed of in the prior special act, and therefore the Arkansas act should be read as silently excluding from its operation the State of Louisiana. This conclusion must necessarily result in denying the right of Louisiana to any indemnity, for, as before sug gested, the indemnity act of 1855 specifically limits its provisions to such States as were included in the Arkansas act.

The confirmatory act of 1857 extended the act of 1855 and confirmed selections of swamp lands made by all the States, and in clear language included Louisiana in its confirmatory provisions, but it does not follow that in the matter of indemnity it had any reference to said State. Louisiana under the act of 1849, in common with Arkansas and other States under the Arkansas act, had made selections under the respective laws granting swamp land, and Congress by the act of 1857 confirmed said selections. Such confirmation had nothing to do with indemnity; it dealt exclusively with State selections. The fact that the State of Louisiana is referred to specifically in the matter of selections in the act of 1857, and not so referred to in the indemnity act, is an additional reason for believing that Congress did not intend to include Louisiana in the matter of indemnity.

Taking into consideration the conditions that existed in the State of Louisiana, as shown by the debates in Congress and the statutes of that State, at the time the Louisiana act was passed, and the nature and character of the act itself, there seems to be no escape from the conclusion that Congress intended by said act to convey to said State all the swamp lands in said State, and thereby finally and forever settle every question in respect to swamp lands, so far as that particular State was 10671-VOL 24——16

concerned; that the lands excepted in said act were clearly understood not to be swamp land in character, but reclaimed, in so far as they had been swampy.

It is equally clear, in the light of reason and the authorities, that said State was not intended to be included in the Arkansas act, nor in the indemnity act of 1855; that the act of 1857 only operated in said State to confirm to her the selections theretofore made under her grant.

It follows that the State's application must be, and it is hereby, rejected and dismissed.

OKLAHOMA LANDS-SECTION 16, ACT OF MARCH 3, 1891.

BONNETT. JONES (ON REVIEW).

The provision in section 16, act of March 3, 1891 (26 Stat., 989), that the lands specified therein shall be opened to settlement "under the provisions of the homestead and townsite laws," should be construed to mean that said lands are to be opened to settlement under the homestead and townsite laws governing the disposition of lands in Oklahoma, and not operating to repeal the provision contained in section 20, act of May 2, 1890, disqualifying as homesteaders all persons owning one hundred and sixty acres in any State or Territory, and applicable to all lands in Oklahoma.

Secretary Bliss to the Commissioner of the General Land Office, March (I. H. L.)

15, 1897.

(E. M. R.) This case involves the SE. of Sec. 5, T. 16 N., R. 7 W., Kingfisher land district, Oklahoma Territory, and is before the Department upon motion for review, by James Jones, of departmental decision of December 23, 1896 (23 L. D., 547), in which was awarded the land in controversy to William J. Bonnett. That decision held that Jones was the owner of 160 acres of land at the time of the hearing in the case, and that under the law such ownership deprived him of the right of entry upon land situated in Oklahoma Territory.

By act of Congress of May 2, 1890 (26 Stat., 81, page 91 thereof, section 20), it is provided:

And no person who shall at the time be seized in fee simple of one hundred and sixty acres of land in any State or Territory, shall hereafter be entitled to enter land in said Territory of Oklahoma.

By act of Congress of March 3, 1891 (26 Stat., 989, page 1026 thereof, section 16), it is provided:

That whenever any of the lands acquired by either of the three foregoing agreements respecting lands in the Indian or Oklahoma Territory shall by operation of law or proclamation of the President of the United States be open to settlement they shall be disposed of to actual settlers only, under the provisions of the home. stead and townsite laws (except section twenty-three hundred and one of the Revised Statutes of the United States which shall not apply).

By act of Congress of March 3, 1891 (26 Stat., 1095, page 1098 thereof, under the head of section 5), it is provided, in the amendment of sec

tion 2289 of the Revised Statutes, after setting forth the qualifications of entry

but no person who is the proprietor of more than one hundred and sixty acres of land in any State or Territory, shall acquire any right under the homestead law.

In the decision sought to be reviewed it was held that the act last referred to could not under any construction of law known to the courts, be held to affect the class of lands mentioned in the act of May 2, 1890 (supra), because the one is general and the other special.

Counsel for the petitioner contends that the act of March 3, 1891 (26 Stat., 989), does serve to except these lands from the abridgment of the right of entry contained in the act of May 2, 1890, because it was under one of the three agreements mentioned in this act that the Cheyenne and Arapahoe lands were thrown open to settlement, and under section 16 (supra) said lands were thrown open to settlement under the provisions of the general homestead law.

Section 20 of the act of May 2, 1890, as has already been shown, contains an absolute and unqualified prohibition to any one who owned 160 acres of land in any State or Territory from thereafter acquiring title under the homestead law to any land in the Territory of Oklahoma. That was a general prohibition applicable to all lands within the Territory of Oklahoma. And as the Cheyenne and Arapahoe reservation is now a portion of that Territory, it is applicable to lands which were formerly in such reservation, as much as to any other lands within its territory.

Repeals by implication are not favored by the courts; and a subsequent act will not be held to repeal the provisions of a former act unless necessitated by the clear intent of Congress; in such instances as where there is a clear conflict between the meaning and scope of the acts. No such necessity is here presented. Both acts can stand.

The act of March 3, 1891, setting forth that these lands are opened to settlement "under the provisions of the homestead and townsite laws," can be and should be construed to mean that the land within the Cheyenne and Arapahoe reservation is open to settlement under the homestead and townsite laws pertaining to the Territory of Oklahoma. In this manner both acts are given force and effect without such construction being inharmonious with the true meaning of both. The motion for review is therefore denied.

PRACTICE-CERTIORARI-APPEAL.

SEE v. SEE.

An application for a writ of certiorari will be denied where the applicant has not previously sought relief through appeal, as provided in the Rules of Practice. Secretary Bliss to the Commissioner of the General Land Office, March (I. H. L.) 15, 1897. (J. L. McC.)

Clay See has filed an application for an order directing your office to transmit to the Department the record in the case of Frank V. See against said Clay See, in the matter of the simultaneous applications of the parties named to enter certain lands-the particular tract in conflict being the NW. of the SW. of Sec. 34, T. 5 N., R. 20 W., Missoula land district, Montana.

The applicant complains of the decision of your office, dated October 22, 1896, a copy of which is filed with his application.

The local officers had recommended that Clay See's homestead entry be canceled in so far as it embraced the forty acres in controversy, and that Frank V. See be permitted to file thereon.

Clay See filed an appeal to your office, alleging that it was error on the part of the local officers

1. To recommend the homestead entry of Clay be canceled as to the NW. of the SW. of Sec. 34, T. 5 N., R. 20 W., and that Frank V. See be allowed to file upon the same;

2. Not to have recommended that said homestead entry remain intact, and that said contest of Frank V. See be dismissed.

A motion was made to dismiss said appeal, on the ground that it failed to set forth specific points of exception to the decision appealed from, as required by the Rules of Practice.

This motion was granted; and your office, proceeding to consider the case under Rule 48 of Practice, held the decision of the local officers final as to facts, concurred with them as to their conclusions of law, and directed the cancellation of Clay See's entry as to the forty acres in conflict-in case the plaintiff applied to perfect his application therefor into an entry.

It does not appear from anything in the application or the accom panying papers that Clay See has ever filed an appeal from said adverse decision of your office.

The right of proceeding by certiorari was instituted as a remedy for any injustice done by your office where the right of appeal therefrom does not exist (Florida Navigation Co. v. Miller, 3 L. D., 324-5; George K. Bradford, 4 L. D., 269; and many cases since); or where appeal has been filed but the right denied by your office (Cedar Hill Mining Co., 1 L. D., 628, and many cases since). But the Department will not countenance, upon the grounds appearing by this record, a resort to the extraordinary remedy of certiorari where the applicant has not